| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 182 |
| Determination date | 22 November 2011 |
| Member | H Doyle |
| Representation | B T Gibbs (in person) ; P Luxford |
| Location | Christchurch |
| Parties | Gibbs v Grasshopper Lawnmowing Services Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicant sought payment in lieu of notice when employment terminated for redundancy following Christchurch earthquake – Respondent claimed applicant was labour only contractor and no payment due – Signed ‘Gardening Contractors Agreement’ between parties – Applicant expected to pay own tax – Contract provided that applicant not to work statutory days but no deduction for statutory days not worked – Contract provided for four weeks holiday per year and seven days sick leave – Contract required 40 hours per week to be worked – Respondent provided all equipment – Respondent claimed agreement described applicant as contractor – Authority found some provisions of agreement consistent with contractor and others indicative of employment relationship – Found applicant required to formulate working schedule and to undertake even spread of work over 40 hour week – Found respondent provided extra support if required – Respondent carried out site inspections – Found control over applicant’s work – Found nature of work integral part of respondent’s business – Found nothing applicant could do to increase earnings – Found industry practice was to have independent contractors – Found applicant employee not independent contractor – ARREARS OF WAGES – Applicant sought three weeks payment in lieu of notice when employment terminated for redundancy – Respondent claimed no provision in applicant’s contract for notice where necessary to terminate because of natural disaster – Respondent claimed applicant’s employment frustrated by earthquake – Respondent claimed one weeks notice reasonable as paid applicant for four days off for family related earthquake matters the week prior – Respondent claimed only required to give four weeks notice of termination when customer dissatisfied – Found applicant would have to give four weeks notice if applicant terminated employment relationship – Found period of reasonable notice in event of redundancy was same provided for other circumstances in contract of four weeks – Found earthquake did not frustrate employment agreement between parties – Found respondent to pay applicant balance of notice period of three weeks – Gardener |
| Result | Applications granted ; Arrears of wages ($2,250) ; No order for costs ; Disbursements in favour of applicant ($71.56)(Filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | A Worker v A Farmer [2010] ERNZ 407;Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372;Charta Packaging Ltd v Howard [2002] ERNZ 10;Karelrybflot AO v Udovenko [2000] 2 NZLR 24 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Christchurch_182.pdf [pdf 41 KB] |